The Customs Union of Russia, Belarus and Kazakhstan has, not unexpectedly, adopted the concept of regional exhaustion of rights. The Russian Federal Customs Service was appointed as being in charge of the Unified Customs Register of Intellectual Property Rights of the Customs Union. The register itself, however, does not yet operate.
In July 2011, the Russian Parliament ratified the Agreement on Unified Principles of Regulation in the Sphere of Intellectual Property Rights Protection (Agreement). It was signed by the governments of Russia, Belarus, and Kazakhstan in December 2010 and should come into effect on 1 January 2012.
By that date the parties will have taken steps to harmonize their IP Laws and Regulations with the requirements of the Agreement in order to grant an equal level of IP protection to all individuals and companies of the Customs Union to join and comply with the major international instruments governing intellectual property rights protection.
For the protection of trademarks, the parties undertake to join, inter alia, the Singapore Treaty on the Law of Trademarks and to adopt the concept of regional exhaustion of rights. The latter is not only a reasonable legal step following the good example of the European Union in its region, but it also brings to an end the current non-uniform concept of exhaustion of rights in the three member states of the Customs Union. Thus, while Russia and Belarus have used the concept of national exhaustion of rights in their legislations, Russian courts have refused to enforce exclusive trademark rights against parallel importers in administrative cases since February 2009, although this possibility existed for civil cases. Kazakhstan, on the other hand, has traditionally used the international exhaustion of rights principle.
The main purpose of the Agreement, similar to that of other documents adopted within the Customs Union, e.g. the Agreement on Unified Principles and Rules of Competition, ratified by the Russian Parliament in July 2011, is to encourage the free movement of goods within the United Economic Area of the Customs Union.
At the same time, the situation with the Unified Customs Register of Intellectual Property Rights of the Customs Union (Unified Customs Register) has remained practically unchanged since June 2011, when the Commission of the Customs Union appointed the Federal Customs Service of Russia to be in charge of the maintenance of the Unified Customs Register. As the Unified Customs Register does not yet operate, we recommend considering the customs registration of trademarks in the three Customs Registers of the member states of the Customs Union in order to limit risks in the absence of Customs control on the borders between Russia, Belarus, and Kazakhstan.